O trust no Direito brasileiro

• Autor(a) principal: Ribeiro, José Horácio Halfeld Rezende
• Data de Publicação: 2022
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/26086
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Trust; Fidúcia; Direito comparado; Patrimônio segregado; Lacuna jurídica; Trust; Fiducia; Comparative law; Segregated patrimony; Legal gap

This thesis investigates the origin of the trust and the Equity Law, to identify the legal notions of an unprecedented legal business in the Civil Law system. This research has the purpose to explain which are the elements and structural notions of the trust legal business as a legal business according to the three levels of the legal business in the positive aspect: existence, validity, and effectiveness. This method makes it possible to identify the elements of the trust business, as well its legal nature, based on the notions of Roman Fiducia, English law, and the Hague Convention on the Law Applicable to the Trust and its Recognition. This basis makes it possible to identify the Fiducia as a core element of the trust legal business. Witch justifies the investigation of the atypicality of the fiduciary legal business and the elements of the fiduciary business in Brazil, to compare with the trust business. Subsequently, the thesis explains which Brazilian legal institutions are similar to the trust business and which limitations apply to it as a basis in Brazilian Law, in search of dogmatic foundations. It adopts the position that the trust business presents the same non-derogable elements of the fiduciary business, being essential also the provision of a segregated patrimony. It presents a rationale and a classification of segregated assets demonstrating the advantages of their use and the absence of obstacle that is in general rule provided by law. The thesis concludes by the existence of a legal gap and by the impossibility of inserting trust in Brazil in the same way as the Common Law system, presenting a proposal for the insertion of an analogous instrument and for Brazil to adhere to the International Hague Convention